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Full-Text Articles in Law
Sensible Agnosticism: An Updated Approach To Domain-Name Trademark Infringement, Shiveh Roxana Reed
Sensible Agnosticism: An Updated Approach To Domain-Name Trademark Infringement, Shiveh Roxana Reed
Duke Law Journal
The Internet era has brought a new battlefield to U.S.-trademark-law disputes: domain names. Trademark owners have vigorously challenged the registration of domain names that consist of-or merely include-their trademarked terms, suing these domain-name registrants in U.S. courts for trademark infringement. During the early years of the Internet, courts often found consumer confusion-and thus trademark infringement-in these cases. As Internet use has developed, however, many courts have not recognized the growing sophistication of online consumers. This Note proposes that U.S. courts adapt their analyses to recognize evolving consumer behavior and expectations. This updated analysis, based on a 2010 Ninth Circuit opinion, …
Rethinking Novelty In Patent Law, Sean B. Seymore
Rethinking Novelty In Patent Law, Sean B. Seymore
Duke Law Journal
The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Duke Law Journal
No abstract provided.
Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon
Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon
Duke Law Journal
Most Americans carry their cell phones everywhere. Cell phone users can purchase ringtones to replace the traditional telephone ring. But often the ringtones are excerpts from copyrighted works, including popular music. This technology has grown enormously in a short time span, forcing lawmakers to consider its applicability to copyright laws that predate ringtones' existence by nearly fifty years. This Note examines the mechanical license provision of the Copyright Act of 1976, including its overlooked legislative history, to determine whether the mechanical license applies to ringtones. It concludes that the statute's requirements exclude most types of ringtones from the scope of …
Cabining Intellectual Property Through A Property Paradigm, Michael A. Carrier
Cabining Intellectual Property Through A Property Paradigm, Michael A. Carrier
Duke Law Journal
One of the most revolutionary legal changes in the past generation has been the “propertization” of intellectual property (IP). The duration and scope of rights expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization also can lead to the narrowing of IP. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each …
The Architecture Of Innovation, Lawrence Lessig
The Architecture Of Innovation, Lawrence Lessig
Duke Law Journal
No abstract provided.
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.
Quieting The Virtual Prison Riot: Why The Internet’S Spirit Of “Sharing” Must Be Broken, Albert Z. Kovacs
Quieting The Virtual Prison Riot: Why The Internet’S Spirit Of “Sharing” Must Be Broken, Albert Z. Kovacs
Duke Law Journal
No abstract provided.
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Duke Law Journal
Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a "property …
A Politics Of Intellectual Property: Environmentalism For The Net?, James Boyle
A Politics Of Intellectual Property: Environmentalism For The Net?, James Boyle
Duke Law Journal
This Essay argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Internet as a case study and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like-what theoretical ideas it might draw upon, and what constituencies it might unite.
The Uncertain Future Of Computer Software Users’ Rights In The Aftermath Of Mai Systems, Michael E. Johnson
The Uncertain Future Of Computer Software Users’ Rights In The Aftermath Of Mai Systems, Michael E. Johnson
Duke Law Journal
No abstract provided.